Environmental Tobacco Smoke
The primary consideration with parental smoking is ETS – environmental tobacco smoke, commonly called secondhand smoke. It has been proven to cause asthma attacks and ear infections in children, and sudden infant death syndrome in babies. In a litigated divorce where a judge is being asked to rule on which parent a child should live with, it only makes sense that some courts will consider exposure to ETS.
The Best Interests Standard
Most states base custody decisions on the best interests standard, a list of factors a judge is obligated to weigh when determining which parent's household their child will live in most often – which parent will have primary physical custody. Even when best standards lists don't cite tobacco smoking specifically, they usually end with a catchall factor: anything else a judge feels is important in making a decision. Therefore, even if case law against parental smoking hasn't been established in your state, or if there is no statutory reference to it in your state's code, this doesn't prevent a judge from including it as a factor when making a custody decision. In fact, even if you don't smoke, it can be held against you if other members of your household do. ETS is only one factor of several, however. According to the Journal of the American Academy of Matrimonial Lawyers, at least one state court has placed custody with a smoking parent over the objection of the other parent because she was considered the more appropriate parent.
Parental smoking – or even a situation where others are smoking in your household – typically becomes more of a custody factor if your child is already experiencing problems that might be worsened by exposure to ETS. For example, if you smoke and your child's asthma worsens after every visit with you, a court is likely to take this into consideration when deciding a final custody arrangement at your divorce trial. Placing your child with you full time might mean resigning her to a sickly childhood if you don't quit the habit. One of the best interests factors in many states is which parent best puts her child's needs before her own, so if you continue smoking in your child's presence knowing that it was harming him, this could detract from your suitability as the custodial parent.
Even if your smoking – or the fact that your spouse smokes – doesn't affect custody outright, family courts have it within their power to issue other orders to try to contain the effects of ETS on children. A judge might order that you never smoke in your home when your child is present, or even for hours before he is expected to be in your custody and care. He can order that you smoke only in one confined area of your home that your child doesn't have access to, or that you not smoke in your car if your child is a frequent passenger.